Sanity and Insanity

Charles Krauthammer has a very interesting column on the judiciary in today's Washington Post (Orin Kerr, among others, with the link). There were loads of points made, some which will anger liberals and others which are clear shots at conservatives. Kicker quote, from my end:

Have that independence and supremacy been abused? Grossly. What other advanced democracy would radically legalize abortion by judicial decree rather than by democratic will expressed through legislatures or referendums? What sane democracy allows four unelected robed eminences in Massachusetts to revolutionize the very definition of marriage, the most ancient institution in society?

This is not just deeply undemocratic. It is politically crazy. Democracies work as stable social entities because when people are allowed to settle issues themselves by debate and ballot, they are infinitely more likely to accept the results when they lose. To deny them that participation is to risk instability and threaten social peace.

It was Ruth Bader Ginsburg who said that Roe v. Wade "halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue."

Now, obviously, I disagree about what constitutes "radical." But the idea that persons need to have a say in the decisions that effect their lives is important--counter-balanced by the fact that when it comes to people's basic rights as persons, elections are neither necessary nor relevant (while we're on the subject, Prawfs Blog had two great posts on whether it's better to be right or have rights). Obviously, the line drawing issues raise dilemmas (I'll once again recommend John Hart Ely's spectacular Democracy and Distrust for some guidance there), but it appears that at least some liberals are starting to take the question seriously.

The other prong of Krauthammer's argument is plea for perspective by conservatives who apparently have been infected by a rabid form of judge-hatred. The Supreme Court is not akin to the Mafia, references to international law are not the sign of the beast, and Anthony Kennedy is certainly not the anti-Christ. Yet the far right seems intent on bringing down the judiciary--and America too if need be. As TMV says, "The judges aren't the ones displaying behavior betraying longtime American traditions and the defense of the constitution..."